The  Discovery  and  Settlement 

OF 

NEW  YORK 

CONSIDERED  IN   ITS  LEGAL  ASPECT. 

BY 

WILLIAM  HENRY  ARNOUX. 


The  Evening  Post  Job  Print,  New  York. 


IE*  ICtbrtB 


SEYMOUR  DURST 


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Avery  Architectural  and  Fine  Arts  Library 
Gift  mi  si  ymour  B.  Di  rst  Old  York  Library 


TEC  IE 

DISCOVERY  AND  SETTLEMENT  OF  NEW  YORK 

CONSIDERED  IN  ITS  LEGAL  ASPECT. 


To  properly  determine  whether  the  Dutch  ever 
obtained  any  title  to  the  soil  of  Manhattan  Island, 
it  becomes  necessary  to  investigate  the  history  of 
the  discovery  and  settlement  of  America,  and  in 
so  doing  to  begin  at  a  time  prior  to  the  original 
discovery  of  this  continent  to  establish  the  legal 
principles  applicable  thereto. 

The  Portuguese  first  discovered  the  African  Con- 
tinent, and  to  obtain  the  proper  title  thereto,  ap- 
plied to  the  Pope  for  a  grant  of  the  land  which 
they  had  discovered.  This  grant  gave  them  the 
whole  of  the  East  from  Cape  Non  to  India. 

In  the  spring  of  1493,  after  the  return  of  Colum- 
bus, the  Spanish,  faithful  to  the  traditions  of  the 
Church,  that  the  Pope  as  the  Vice-Gerent  of  God 
had  the  absolute  power  of  disposing  of  all  land 
occupied  by  the  heathen,  sent  a  deputation  to 
Pope  Alexander  VII.,  from  whom  they  obtained  a 
grant  In  May,  14:»:>.  of  all  the  continents  and 
islands  known  and  unknown,  discovered  and  to  be 
discovered  on  a  line  one  hundred  miles  west  of  the 
Azores,  and  extending  from  pole  to  pole. 

The  discovery  of  Columbus  aroused  Western 
Europe  to  make  further  discoveries,  and  in  1497, 
John  Cabot,  a  Venetian,  with  his  three  sons,  in- 


2 


eluding  Sabastian,  whose  fame  has  overshadowed 
all  the  others,  authorized  by  King  Henry  VII., 
fitted  out  an  expedition  from  Bristol,  then  the 
principal  seaport  of  England,  and  first  discovered 
the  Continent  of  America.  He  laid  his  course  to- 
wards Iceland  and  from  thence  changing  to  the 
westward,  eventually  reached  land,  as  he  believed, 
on  the  eastern  coast  of  Asia,  in  the  territory  of 
the  Grand  Cham.  He  landed  on  Labrador,  on  St. 
John's  Day,  the  10th  day  of  June,  1497.  He 
formally  set  up  first  the  cross,  next  the  standard 
of  England,  and  last  the  banner  of  St.  Mark's,  and 
took  possession  of  the  territory  on  behalf  of  the 
King  of  England,  naming  the  place  St.  Johns,  in 
honor  of  the  day,  now  supposed  to  be  by  some 
Cape  Breton.  •  The  exact  spot  probably  can  never 
be  absolutely  determined.  It  is  enough  to  know 
that  he  first  discovered  the  continent  and  landed 
somewhere  and  took  possession. 

He  sailed  some  distance  along  the  coast  as  far 
southward  as  the  38°  north  latitude,  and  then  re- 
turned to  England. 

The  following  year,  under  the  same  authority, 
he  sailed  across  the  Atlantic  and  skirted  the  shore 
from  Labrador  to  the  Gulf  of  Mexico.  The  father 
died  before  his  return,  leaving  the  expedition  in 
the  care  of  his  son  Sebastian.  Under  the  law  of 
nations,  as  it  then  existed  in  Europe,  and  has  been 
recognized  by  the  Supreme  Court  of  the  United 
States,  these  two  voyages  gave  to  England  the 
title  to  three  thousand  miles  of  the  continent  as 
the  original  discoverer,  besides  the  untold  riches  of 
the  deep  in  the  food  fisheries  of  Newfoundland  and 
the  whale  fisheries  of  the  Artie  Sea  in  which  she 
shared  with  the  other  nations.  "We  derive  our 
rights  hi  America,"  said  Edmund  Burke,  "  from 
the  discovery  of  Sebastian  Cabot,  who  first  made 
the  North  American  continent  in  1497.  The  fact 
is  sufficiently  certain  to  establish  a  right  to  our 
settlement  in  America."  "To  this  discovery," 
says  Chief  Justice  Marshall  (Johnson  v.  Mcintosh, 


3 


8  Wheat.,  570),  "the  English  trace  their  title. 
*  *  *  The  absolute  ultimate  title  has  been  con- 
sidered as  acquired  by  discovery.  *  *  *  If  the 
discovery  be  made  and  possession  of  the  country 
be  taken  under  the  authority  of  existing  govern- 
ment which  is  acknowledged  by  the  emigrants,  it 
is  supposed  to  be  equally  well  settled  that  the  dis- 
covery is  made  for  the  whole  nation,  that  the 
country  became  a  part  of  the  nation." 

And  Taney,  Ch.  J.,  in  Martin  v.  Waddell,  16 
Peters,  3G7,  which  involved  the  land  in  New  York 
and  New  Jersey,  under  the  patent  to  the  Duke  of 
York,  says:  "The  English  possession  in  America 
was  not  claimed  by  right  of  conquest,  but  by 
right  of  discovery.  The  discoveries  made  were 
by  persons  acting  under  the  authority  of  the  Gov- 
ernment and  were  for  the  benefit  of  the  nation." 

Pursuant  to  the  terms  of  the  Patent  from  the 
King,  Cabot  was  entitled  to  the  exclusive  occupation 
and  possession  of  all  the  lands  which  he  had  thus 
discovered. 

Sebastian  Cabot  endeavored  for  }rears  fruitlessly 
to  enlist  the  capital  of  Englishmen  to  prosecute 
his  discoveries,  and  in  1512  left  England  disheart- 
ened and  engaged  in  the  service  of  the  King  of 
Spain.  He  subsequently  in  15-iS  returned  to  Eng- 
land. In  March,  1551,  he  was  granted  a  pension 
by  the  King,  which,  on  the  27th  day  of  Novem- 
ber, 1555,  was  renewed  to  him  by  Queen  Anne. 
The  last  official  notice  we  find  relating  to  him 
is  that  on  the  27th  day  of  May,  1557,  he  resigned 
this  pension;  and  he  died  about  1559,  but  the  ex- 
act date  of  his  death  is  unknown.  No  stone  marks 
his  last  resting  place.  No  monument  in  England 
or  America  commemorates  the  fame  of  the  original 
discoverer  of  America. 

The  next  explorers  were  the  Portuguese,  who 
also  sought  to  find  a  new  way  to  the  East  Indies 
that  did  not  encroach  upon  the  Spanish  grant, 
which  was  then  considered  to  give  them  a  mon- 
opoly by  way  of  South  America.    In  the  summer 


4 


of  1500  Gasper  Cortereal,  having  obtained  from 
Emanuel,  then  King  of  Portugal,  a  license  to  dis- 
cover new  islands,  sailed  from  Lisbon  to  the  north- 
west, and  returned  with  a  report  that  he  had 
landed  in  a  country  he  named  Terre  Verde  (Green- 
land). The  next  year  he  renewed  his  search  and 
sailed  along  the  coast  of  North  America  for  six 
hundred  leagues  without  finding  any  end  to  the 
land. 

In  1502  his  brother,  Miguel,  sailed  to  North 
America  and  found  many  estuaries  and  large 
rivers  and  safe  havens.  Others  followed  in  this 
track  in  pursuit  of  the  cod  upon  the  fishing  banks, 
and  a  large  traffic  was  thus  inaugurated. 

In  1524  Giovanni  de  Verrazano,  a  Florentine, 
under  the  authority  of  Francis  I.,  King  of  France, 
sailed  to  North  America  with  the  intention  of 
reaching  Cathay,  on  the  extreme  coast  of  Asia. 
He  explored  the  coast  from  the  Tropic  of  Cancer 
to  the  50th  degree  north  latitude.  He  visited  the 
Bay  of  New  York  with  its  "grandissima  riviere," 
and  from  thence  he  sailed  to  Newport. 

Doubt  has  been  expressed  in  regard  to  the  verity 
of  this  discovery.  No  question  has  been  made 
that  the  description  shows  that  the  author  of  the 
letter  visited  Newport  and  New  York;  but  it  has 
been  claimed  that  the  letter  which  he  wrote,  an- 
nouncing his  discovery,  was  a  forgery.  In  view 
of  which  Mr.  Bancroft,  in  a  later  edition  of  his 
history  of  the  United  State,  has  omitted  all  refer 
ence  to  Verrazano.  Subsequent  to  this  publication 
recent  discoveries  have  established  beyond  ques- 
tion the  authenticity  of  this  letter.. 

On  the  27th  day  of  March,  1523,  Esteban 
Gomez,  a  Portuguese,  who  had  been  the  chief 
pilot  of  Magellan,  obtained  a  concession  from  the 
King  of  Spain  for  an  expedition  to  the  northwest 
to  find  a  passage  to  Asia. 

In  February,  1525,  he  sailed  from  Corunna,  a 
port  in  the  north  of  Spain,  and  was  absent  ten 
months.    He  ran  along  the  coast  from  Florida  to 


5 


41°  north  latitude,  and  in  the  course  of  his  voyage 
he  discovered  a  large  river  in  latitude  40°  and  41°, 
which  he  named  Rio  de  Antonio,  because  he  entered 
the  harbor  on  the  13th  day  of  June,  St.  Anthony's 
day.  It  is  certain,  therefore,  that  he  entered 
the  Bay  of  New  York  and  sailed  up  the  Hudson 
River.  In  honor  of  his  discovery,  the  later  Span- 
ish seamen  who  followed  in  his  track,  and  were 
familiar  with  the  river,  called  it  Rio  de  Gamas. 

The  Spaniards  engaged  largely  in  the  catching 
of  cod  on  the  fishing  banks,  sailing  across  the  At- 
lantic to  the  West  Indies,  and  thence  skirting 
timidly  along  the  coast  to  Newfoundland.  In 
fact,  for  nearly  a  century  the  customary  route  for 
vessels  visiting  America  was  to  sail  first  to  the 
West  Indies,  and  then  along  the  shore  as  far 
north  as  Labrador,  and  to  return  by  retracing  their 
course  In  these  voyages  the  Spanish  visited  certain 
ports,  which  were  called  "stages,"  one  of  which 
was  New  York. 

No  attempt  was  then  made  to  settle  any  part  of 
the  coast,  the  principal  commerce  being  the  bring- 
ing of  fish  from  the  banks  of  Newfoundland  to 
Europe. 

In  1534  Jacques  Cartier,  under  a  commission 
from  the  King  of  France,  founded  a  settlement  in 
-Canada.  In  1564  Ribault  and  Laudonniere,  under 
a  similar  commission  from  Charles  IX.,  colonized 
the  Carolinas,  and  the  French  claimed  all  the  inter- 
mediate territory.  The  English  always  conceded 
that  the  French  had  territorial  rights.  They  only 
disputed  their  extent. 

On  the  11th  day  of  June,  1578,  Elizabeth,  Queen 
of  England,  granted  to  Sir  Humphrey  Gilbert  a 
patent  in  fee  of  all  lands  in  America  two  hundred 
leagues  in  either  direction  north  and  south  from 
the  place  of  his  landing,  and  from  ocean  to  ocean; 
his  intent  being  to  found  a  station  from  which  he 
could  explore  and  discover,  what  was  firmly  be- 
lieved to  exist,  a  northern  passage  to  Asia.  In 
November,  157S,  with  a  fleet  of  seven  vessels,  one 


6 


of  which,  named  the  Falcon,  was  commanded  by 
his  half-brother,  who  subsequently  became  famous 
as  Sir  Walter  Ralegh,  he  sailed  from  England 
with  three  hundred  and  fifty  men.  Unfortunately 
the  seasou  was  unpropitious,  and  the  voyagers 
were  compelled  to  return.  Nothing  daunted,  the 
noble  knight,  in  June,  1583,  again  sailed  for 
America  with  a  fleet  of  four  vessels,  and,  as  he 
says,  "  On  the  fifth  of  August  I  entered  here  (St. 
John's)  in  the  right  of  the  Crown  of  England,  and 
have  engraven  the  arms  of  England,  divers  Span- 
iards, Portuguese  and  other  strangers  witnessing 
the  same."  Then  he  sailed  for  Norumbega,  and 
in  latitude  40°  lost  his  great  ship  the  A dmiral  with 
most  of  his  supplies,  which  compelled  him  again 
to  return.  His  ship  foundered  in  midocean  on  the 
return  voyage,  and  he  and  all  the  crew  perished. 
Walter  Ralegh,  on  the  20th  day  of  March,  1584, 
obtained  a  similar  grant  from  Elizabeth  of  all 
land  extending  two  hundred  leagues  north  and 
south  of  any  point  where  he  might  locate  a  colony. 
The  colony  that  he  sent  out  under  this  grant  landed 
on  the  4th  of  July  at  the  haven  of  New  Inlet,  and 
"took  possession  in  the  name  of  the  Queen's  most 
excellent  Majesty,  as  rightful  queen  and  princess 
of  the  same,"  and  subsequently  made  a  settlement 
upon  Roanoke  Island.  His  two  hundred  leagues 
being  calculated  on  degrees  of  latitude  carried  his 
ownership  to  Maine.  Although  he  expended  a 
fortune  in  the  attempt  to  colonize,  his  efforts 
proved  abortive,  and  on  the  10th  of  June,  1586,  the 
colonists  returned  to  England.  Ralegh  in  1589 
granted  a  patent  to  ' '  the  Governors  and  assistants 
of  the  City  of  Raleigh,  in  Virginia,"  which  lapsed  in 
1596  without  accomplishing  anything.  His  title  to 
the  land  patented  to  him  was  recognized  by  the 
English  courts,  for  in  1602  one  Gosnold  came  to 
the  coast  of  Massachusetts  and  loaded  his  ship  with 
sassafras  and  cedar  wood  from  the  Island  of  Cut- 
tyhunk.  Upon  his  arrival  in  England  Sir  Walter 
Ralegh  had  his  cargo  confiscated,  because  he  had 


7 


trespassed  upon  his  domain.  It  follows  if  his  title 
extended  to  Massachusetts,  it  embraced  New  York. 

In  November,  1603,  Sir  Walter  Ralegh  \Vas  at- 
tainted and  convicted  of  treason,  for  which  in 
1617  he  was  beheaded.  Under  the  law  of  England 
the  execution  of  the  sentence  was  not  necessary  to 
cause  the  forfeiture  or  escheat  of  the  property. 
Petersdorff  in  his  Abridgement  lays  it  down  that 
"by  the  verdict  of  guilty  goods  and  chattels  are  for- 
feited to  the  crown,  upon  judgment  in  attainder 
the  lands  are  divested  "  (2  Petersdorff,  Abr.,  491). 
And  Blackstone  says  ;'  by  attainder  in  high  treason 
a  man  forfeited  to  the  crown  all  his  lands  and  ten- 
ements of  inheritance." 

The  title  to  this  property  having  thus  reverted 
to  the  crown,  King  James  I.  on  the  16th  of  April, 
160G,  made  the  famous  charter  to  the  Virginia  Col- 
ony. This  is  contained  in  one  instrument,  but  it 
divides  the  patentees  into  two  parts.  The  one 
called  the  First  Colony  of  Virginia  was  to  have  the 
territory  in  America,  extending  from  31°  to  41°; 
the  Second  Colony  of  Virginia  was  to  have  the  ter- 
ritory extending  from  39°  to  45°.  It  will  thus  be 
seen  that  Manhattan  Island  and  the  land  adjacent 
thereto  was  included  in  the  patent  to  both  colonies. 
It  being  the  intent  that  they  should  occupy  in 
severalty  the  northerly  and  southerly  portions, 
while  the  central  portion  should  be  in  common  to 
prevent  conflicting  interests. 

This  grant  the  States  General  officially  recognised 
on  the  24th  day  of  April,  1608,  by  permitting  Sir 
Thomas  Gates,  Captain  of  English  soldiers  in  their 
employ,  to  be  absent  one  year  /'to  command  in 
the  country  of  Virginia  in  colonizing  the  said 
countries.'' 

These  Colonies  continued  under  this  patent  for 
a  number  of  years,  until  their  interests  became 
hostile  and  they  both  obtained  from  the  Crown 
separate  patents  for  their  several  portions  The 
one  known  as  the  Virginia  Colony  and  the  other 


8 


the  New  England  Colony.  The  former  created  in 
1609,  the  latter  on  the  16th  of  Nov.,  1620. 

The  Dutch  were  the  last  ofall  the  maritime 
powers  to  visit  America.    In  1596  certain  Dutch 
merchants  obtained  from  the  States  General  the 
incorporation   of  a  company  known  as   "  The 
Greenland  Company,"  which  proposed  by  that 
northerly  route  to  find  a  way  to  the  East  Indies. 
In  1098  the  ships  of  this  company  entered  the  port 
of  New  York  and  their  crews  built  some  huts  upon 
Manhattan  Island  where  they  wintered.  Nothing 
further  was  done  by  them  in  America  until  1609 
when  Henry  Hudson,  who  had  previously  been  in 
the  employ  of  the  Muscovy  Company  of  England, 
sailed  in  the  employ  of  the  East  India  Company  to 
discover  a  route  to  the  East  Indies  by  way  of 
Greenland,  in  which  he  failed,  and  then  according 
to  the  suggestion  of  Captain  John  Smith,  sailed  to 
Maine  and  on  the  4th  of  Sept.,    1609,  came 
to  the  Hudson  River  and  ascended  as  far  as 
Albany.     When  he  discovered  that  the  river 
which  he  supposed  would  lead  him  to  the  Indies 
was  becoming  an  unnavigable  stream,  he  returned 
to  England  and  never  renewed  the  attempt  in 
these  waters.    He  never  claimed  to  have  been  a 
discoverer,  but  he  kept  a  log  which  accurately  re- 
corded his  voyage  and  its  events.    In  1611  some 
Dutchmen  fitted  out  some  ships  destined  to  look 
for  a  north  passage  to  China,  and  on  the  1st  day 
of  Feby.,  1611,  the  States  General  resolved  to  pro- 
vide them  with  letters  to  the  princes  of  the  coun- 
tries at  which  they  might  arrive,  written  in  such 
language  and  characters  as  might  be  most  useful. 
These  vessels  landed  at  New  York,  and  in  1614 
their  owners  petitioned  the  Government  for  an  ex- 
clusive grant  of  trading  to  this  territory  and  the 
harbor  which  they  thought  they  had  discovered. 
Here  finding  the  fur  trade  profitable,  they  had  a 
Governor  for  the  little  Colony  and  they  built  three 
or  four  houses  and  a  warehouse  for  the  storage  of 
their  furs.    This  petition  was  granted, and  a  Dutch 


9 


monopoly  was  granted  to  them  which  continued 
until  1621. 

•  The  year  previous  to  this  petition  Captain  Argall 
in  the  employ  of  the  Virginia  Colony  sailed  with 
an  armed  fleet  to  the  coast  of  Maine,  to  expel  the 
French,  and  on  his  return- he  stopped  in  the  Bay  of 
New  York,  discovered  the  Dutchmen  there  and 
threatened  them  with  extermination  if  they  did 
not  recognize  the  authority  of  Virginia,  thereupon 
they  paid  him  the  tribute,  which  he  had  demanded. 
This  event  has  likewise  been  strongly  criticized,  and 
by  some  historians  absolutely  denied,  but  the  better 
authorities  show  that  this  was  true.  There  is  no 
dispute  that  Capt.  Argall  did  drive  the  French 
from  Port  Royal  and  Mount  Desert.  Part  of  them 
he  took  prisoners  and  carried  to  Virginia  and 
the  rest  he  sent  in  an  open  boat  to  sea.  Having 
thus  compelled  the  recognition  of  the  authority  of 
Virginia  by  force,  as  far  north  as  Maine,  it  is  very 
certain  that  if  he  knew  of  the  existence  of  the 
Dutch  Colony  at  an  intermediate  point,  he  would 
not  suffer  them  to  remain  unmolested;  and  as  the 
port  of  New  York  had  become  a  recognized 
stopping  place  for  vessels  sailing  along  the  coast, 
he  undoubtedly  would  have  entered  the  port  on 
his  going  or  returning,  on  the  two  voyages  which  he 
made  to  Maine,  during  that  summer.  Without 
citing  the  authorities  at  length  it  is  sufficient  to  say 
that  the  Rev.  Dr.  De  Costa  has  established  the 
weighty  fact  beyond  dispute  that  the  Dutch  settlers 
on  Manhattan  Island  did  in  1(113  recognize  and  ac- 
knowledge the  English  sovereignty  to  that  territory. 

In  1619  the  English  again  under  Capt.  Dormer, 
molested  theDutchand  threatened  to  confiscate 
their  property.  Whereupon  th*1  Dutch  promised 
to  come  "  thether  no  moe." 

In  L621  after  many  years  of  laborious  and  patrio- 
tic effort  William  Usselinx  and  his  compatriots 
succeeded  in  procuring  from  the  States  General 
the  incorporation  of  the  West  India  Company  for 
the  principal  purpose  of  attacking  the  commerce 


10 


of  Spain.  Into  this  company  was  merged  the 
association  of  traders  who  had  previously  obtained 
the  right  to  trade  in  New  Netherland. 

The  West  India  Company  originally  had  no  in 
tention  of  colonizing  in  north  America,  It  made 
New  York  a  naval  station,  from  whence  their 
ships  might  attack  the  commerce  of  Spain,  and  it 
was  so  successful  that  within  a  few  years  it  boasted 
that  "it  had  exhausted  the  treasury  of  the  King 
of  Spain  by  depriving  him  of  so  much  silver,  which 
was  as  blood  from  one  of  the  arteries  of  his  heart. 

The  story  of  the  exodus  from  England  to  Hol- 
land and  from  Holland  to  Plymouth  Rock  of  those 
Godly  men  who  are  fondly  remembered  as  the  Pil- 
grim Fathers  is  too  often  told  to  be  repeated  here. 
They,  however,  bear  a  part  in  the  legal  history  of 
New  York  that  needs  to  be  mentioned.  In  1617 
they  concluded  to  leave  Holland,  and  they  then 
determined  to  settle  in  New  York.  Thereupon, 
they  sent  a  delegation  to  England  to  obtain  a  char- 
ter. Two  years  elapsed  before  they  were  able  to 
obtain  a  favorable  answer.  Finally,  in  February, 
1620,  the  First  Colony  of  Virginia  granted  to  John 
Pierce  and  his  associates  a  patent  under  which  the 
pilgrims  sailed  in  the  Mayflower  to  America.  Be- 
fore landing  on  Plymouth  Rock,  on  the  11th  of 
November,  1620,  in  the  cabin  of  the  Mayflower, 
they  designated  themselves  the  loyal  subjects  of 
King  James,  who  were  undertaking  to  plant  the 
first  colony  in  the  northern  part  of  Virginia.  In  the 
meantime  the  King  had  granted  the  separate  char- 
ter to  the  New  England  Colony,  and  on  the  first 
day  of  June,  1621,  the  President  and  Council  of 
New  England  confirmed  to  the  Pilgrims  the 
Virginia  Charter  by  a  patent  which  embraced  New 
York.  On  the  15th  day  of  December,  1621,  the 
English  Privy  Council  addressed  a  letter  to  the 
British  Minister  to  the  Hague,  demanding  the  re- 
moval of  certain  Hollanders  who  had  during  the 
past  year  intruded  upon  lands  in  part  of  the 
north  of  Virginia  called  New  England.  The  British 


11 


ambassador  thereupon  presented  the  memorial, 
and  asserted  in  his  own  Idler  the  ineontestible 
right  of  the  King  of  England  to  said  country,  both 
by  original  disco  very  and  jure  primce  occupations. 

It  was  this  protest  that  secured  the  incorporation 
of  tin1  Wes\  India  Company,  for  its  charter  con- 
tained a  clause  that  it  obligated  itself  to  protect 
the  Dutch  Territory  in  North  America. 

In  1623  the  English  prepared,  by  force,  to  attack 
the  Hollanders  in  America,  to  give  them  fight  and 
spoil  and  sink  them  down  in  the  sea,  but  the 
Treaty  of  Southampton  prevented  the  execution  of 
this  intention. 

In  1623  the  Dutch,  under  the  auspices  of  the 
West  India  Company,  made  their  first  permanent 
settlement  upon  Manhattan  Island. 

The  following  year  terminated  the  first  Colony 
of  Virginia,  and,  consequently,  its  claim  to  juris- 
diction over  Manhattan  Island.  In  1619  the  King 
having  become  dissatisfied  with  the  condition  of 
a Cfaiis  in  that  colony,  sent  over  a  commission, 
which  brought  back  an  unfavorable  report;  where- 
upon, in  1624  by  writ  of  quo  warranto,  theVirgina 
charter  was  annulled. 

In  1626  the  Dutch  attempted  to  fortify  their 
claim  to  this  colony  by  buying  of  the  Indians  the 
Island  of  Manhattan,  supposed  to  contain  twenty- 
two  thousand  acres,  for  twenty-four  dollars.  It  is 
claimed  that  this  purchase  was  made  by  fraud,  and 
that  it  was  consummated  by  the  transfer  to  the 
Indians  of  a  quantity  of  whiskey,  in  place  of  their 
money.  However  that  may  be,  the  Supreme 
Court  of  the  United  States  has  had  before  it  the 
question,  what  title  the  Indians  had  in  this  coun- 
try, and  what  the  purchaser  of  such  title  acquired, 
and  it  has  been  determined  that  the  Indians  had 
simply  a  possessory  title  and  not  any  ownership 
of  the  soil,  and  that  a  purchaser  from  them  ob- 
tained no  more  than  the  right  to  the  possession, 
subject  to  the  right  and  title  of  the  owner  of  the 
fee. 


12 


In  1627  Governor  Bradford  suggested  that  the 
Dutch  were  trespassing  upon  English  territory, 
whereupon,  the  West  India  Company  petitioned 
the  British  government  to  accord  to  them  the 
benefits  of  the  treaty  of  Southampton,  which  was 
granted  by  decree  of  the  Privy  Council,  on  the 
fifth  day  of  September,  1627,  and  thereby  the 
Dutch  again  recognized  the  sovereignty  of  Eng- 
land over  that  territory. 

Up  to  this  time  the  Dutch  never  in  a  single  in- 
stance asserted  any  title  to  the  territory.  They 
invariably  retreated  from  any  discussion  upon  the 
subject. 

The  original  grant  from  the  New  England  Com- 
pany to  thePlymouthColony  extended  beyond  New 
York.  A  grant  was  also  made  to  Connecticut  which 
included  New  York,  and  to  Lord  Sterling  of  Long 
Island  and  the  lands  adjacent  thereto,  within  six 
miles,  which  likewise  embraced  New  York.  Be- 
sides this  every  New  England  charter  granted  by 
Charles  recited  the  original  grant  to  the  Second 
colony  of  Virginia  as  embracing  the  territory 
which  included  New  York.  In  1631  the  Governor 
of  Virginia  and  the  King  granted  trading  licenses 
to  the  English  captains  to  the  Dutch  plantations. 

The  Governor  General  of  Ireland  also  granted 
to  Sir  John  Plowden,  in  1632,  a  patent  to  New 
York.  Of  all  these  Plowden  was  the  first  to  at- 
tempt to  take  possession  of  his  property;  he  ap- 
peared and  demanded  of  the  Dutch  that  they 
should  recognize  his  authority,  which  they  refused 
to  do,  upon  the  ground  that  his  patent  was  invalid 
because  the  seal  thereto  was  broken,  and  as  he  had 
not  a  sufficient  force  at  his  command  to  compel 
submission  to  his  claim  he  found  it  expedient  tore- 
treat.  But  the  English,  continuing  thus  to  patent 
the  land,  never  admitted  that  the  Dutch  had  any 
right  here.  On  the  contrary,  in  1632,  Captain  Ma- 
son denounced  the  Dutch  as  interlopers  and  com- 
plained of  their  great  trade.  When  the  Eenchxicht, 
which  sailed  from  Manhattan  Island  for  Holland  on 


13 


the  19th  day  of  March,  1632,  loaded  with  furs  and 
bearing  the  first  governor  who  had  been  recalled, 
was  by  stress  of  weather  forced  into  the  Port  of 
Plymouth,  in  England,  the  vessel  and  cargo  were 
seized  by  the  British  authorities  upon  the  ground 
that  she  had  invaded  their  rights  in  trading  upon 
British  territory.  A  diplomatic  correspondence 
ensued  and  the  English  claimed  the  territory  by 
right  of  discovery  and  ownership.  The  West  India 
Company  laid  claim  to  it  because  the  New  England 
and  Virginia  Colonies  were  chartered  "upon  the 
express  condition  that  the  respective  incorporated 
parties  should  remain  one  hundred  miles  apart 
from  each  other,  and  have  so  much  between  them 
both.''  This  statement  was  incorrect  and,  if  true, 
would  have  given  the  Dutch  no  right  to  come  in 
there.  The  Dutch  ambassador  added  to  that  rea- 
son the  further  one  that  they  had  acquired  the  title 
of  the  Indians.  Some  time  after,  this  vessel  was 
released  with  the  express  reservation  of  his  Ma- 
jesty's right  in  the  premises.  In  April,  1633,  the 
William ,  a  British  vessel,  under  command  of  one 
Elken,  came  to  New  York  and  ascended  the  Hud- 
son, in  spite  of  Dutch  protests,  to  trade  with 
the  Indians.  The  Dutch  came  to  the  place  where 
he  landed  and  by  force  drove  him  away,  and  the 
British  ambassador  made  a  demand  upon  the 
Dutch  West  India  Company  for  the  damages  that 
had  been  sustained.  Whereupon  the  Company  pe- 
titioned the  States  General  to  interfere  on  its  be- 
half, and  after  long  consideration,  on  the  25th 
day  of  October,  1034,  the  Government  declined  to 
interfere  and  advised  the  Company  to  confer  in 
this  matter  with  the  English  ambassador.  W  hat 
the  final  result  was  cannot  be  ascertained. 

On  the  7th  day  of  June,  1635,  the  President  and 
Council  of  New  England  surrendered  its  great 
charter  to  the  Crown,  to  the  end  that  the  land 
embraced  therein  might  be  divided  into  twelve  pro- 
vinces, of  which  the  9th  extended  from  the  Con- 


14 


necticut  to  the  Hudson  and  fell  to  the  share  of  the 
Duke  of  Lenox. 

Wouter  Van  T  wilier,  who  succeecfed  Minuet  was 
the  prototype  of  some  of  the  modern  city  fathers. 
He  employed  servants  of  the  Company  who  were 
in  its  pay,  to  labor  in  his  private  farm,  and  thus 
enriched  himself  at  the  public  expense.  In  1639  he 
was  recalled  and  William,  Kief t  appointed  his  suc- 
cessor. He,  in  16-13,  planned  and  executed  the  most 
unjustifiable  massacre  of  the  Indians  ever  com- 
mitted in  America.  In  consequence  of  which  the 
surrounding  Indians  became  bitterly  hostile  to  all 
the  Dutch  settlers  indiscriminately,  to  the  apparent 
surprise  of  Kieft.  who  imagined  that  the  blow  he 
had  struck  would  awe  them  into  abject  submission. 
In  one  week  the  smiling  country  was  transformed 
into  a  frightful  and  desolate  wilderness.  On  the 
fourth  of  March  the  panic  stricken  governor  pro- 
claimed a  day  of  general  fasting  and  prayer,  with- 
out bettering  the  situation.  As  the  spring 
advanced  the  Indians  became  more  and  more  ag- 
gressive, destroying  barns,  dwellings  and  cattle, 
and  preventing  the  cultivation  of  the  farms.  In 
their  distress,  in  the  fall,  the  wretched  settlers  sent 
petitions  to  the  home  government  either  to  keep 
them  from  starvation  or  to  send  vessels  that  would 
take  them  home.  One  of  the  documents  signed 
by  the  eight  men  who  had  been  selected  as  the  re- 
presentatives of  the  Dutch  colonists,  stated  that 
the  Indians  had  destroyed  all  their  boweries  or 
plantations  upon  the  island  and  beyond  the  fort, 
except  three,  and  that  the  inhabitants  were  in 
peril  of  their  lives.  The  Government  adopted  a 
resolution  that  the  population  were  neglected  by 
the  Company,  and  was  decreasing.  This  was  in 
striking  contrast  with  the  flourishing  condition  of 
all  the  New  England  settlements. 

On  the  23d  day  of  July,  1646,  Stuyvesant  was 
sent  over  as  Governer,  because  of  the  dissatisfac- 
tion with  his  predecessor,  and  his  first  endeavor 
was  to  settle  the  dispute  in  regard  to  the  bound- 


15 


aries;  the  English  encroaching  upon  it  from  New 
England  on  the  one  side,  and  from  Delaware  upon 
the  other. 

In  this  connection  it  is  interesting  to  know 
that  in  the  early  days  of  the  discovery  and 
conquest  of  America,  it  was  customary  for 
every  adventurer  to  take  possession  in  the 
name  of  his  sovereign,  and  to  put  up  some  en- 
sign to  signify  the  authority  of  the  home  govern- 
ment. This  was  done  by  Columbus  and  by  Cabot. 
This  the  Dutch  did  in  Delaware.  They  affixed  a 
piece  of  tin  to  a  post.  One  of  the  Indian  chiefs, 
not  understanding  its  significance,  and  attracted 
by  the  brightness  of  the  tin,  stole  it,  and  to  punish 
this  affront,  he  or  one  of  their  number  was  mur- 
dered. To  avenge  this  murder,  the  Indians  exter- 
minated the  colonists,  and  the  next  vessel  that 
arrived  from  Holland  found  that  not  a  living  being 
had  been  spared. 

No  such  definite  mark  of  Dutch  authority  ever 
appears  to  have  been  set  up  at  Manhattan  Island; 
upon  the  contrary  the  Dutch  apparently  endeavor- 
ed to  keep  their  position  in  New  York  as  much 
from  the  observation  of  the  world,  and  of  the 
English,  as  possible,  because  they  anticipated  a 
very  profitable  business  in  furs,  if  they  could 
c  arry  it  on  unmolested.  But  the  colony  proved  to 
be  an  expense  to  the  West  India  Company,  almost 
continuously,  so  that  it  became  unwilling  to  ex- 
pend the  moneys  necessary  for  the  protection  of 
the  colony,  or  for  its  development. 

Siuyvesant  Wrote  letters  to  the  Home  Govern- 
ment, telling  them  that  unless  the  colony  was 
taken  under  the  wing  of  the  State,  instead  of  being 
allowed  to  remain  tinder  a  private  corporation,  the 
English  would  soon  displace  them. 

In  1647  an  agent  of  Lady  Sterling,  who  held  the 
Long  Island  patent,  demanded  of  Stuyvesant  the 
surrender  of  the  territory,  which  he,  likePlowden, 
was  unable  to  enforce,  and  his  demand  was  re- 
fused. 


16 


In  1649  Stuyvesant  effected  the  settlement  of  a 
boundary  line  between  New  Netherland  and  Con- 
necticut, but  the  action  of  the  Colony  was  never 
ratified  in  England,  and  never  became  effectual. 

In  1650  certain  delegates  from  New  Netherland 
presented  a  petition  to  the  States  General,  in  which 
they  set  forth  the  calamities  that  had  befallen  them 
through  the  mismanagement  of  the  West  India 
Company,  by  which  "  their  territory  had  became  a 
desert,  and  the  people  impoverished,  harassed,  af- 
flicted and  reduced  to  utter  ruin,  while  New  En- 
gland was  populous,  rich,  prosperous  and  driving 
an  immense  trade  and  commerce  almost  with  the 
entire  universe,-'  and  recommended  "  in  order  to 
block  the  further  progress  of  the  English,  that  they 
should  provisionally  set  about  hitching  on  to  New 
Netherland  the  most  distant  lands  lying  between 
the  Dutch  nation  and  the  English,  which  were  yet 
vacant." 

To  add  to  their  afflictions,  the  British  Parliament 
enacted  in  the  same  year,  that  all  vessels  trading 
to  Virginia  and  New  England  without  English 
authority  after  the  26th  day  of  March,  1651,  should 
be  confiscated.  The  Dutch  merchants  petitioned 
the  States  General  to  afford  them  some  relief.  In 
the  interim,  and  in  January,  1651.  England  de- 
manded that  the  Dutch  should  surrender  some 
political  refugees,  which  was  refused  with  insults 
to  the  English  ambassador.  Thereupon  the  Navi- 
gation Act  was  passed  for  the  protection  of  En- 
glish shipping  against  the  Dutch,  which  resulted  in 
war  between  the  two  countries. 

On  the  second  day  of  July,  1652,  the  States  Gen- 
eral for  the  first  time  directly  interfered  in  the 
action  of  the  Colony,  and  instructed  Stuyvesant  to 
take  good  care  and  be  of  a  watchful  eye  respecting 
the  persons  he  employed  during  the  rupture  be- 
tween that  State  and  England. 

On  the  second  day  of  February,  1653,  the  anni- 
versary of  the  feast  of  the  Purification  of  the 
Virgin,  commonly  called  Candlemas,  the  little 


17 


colony  on  Manhattan  Island,  in  the  midst  of  the 
war,  became  a  city. 

In  December,  1653,  Cromwell  became  Lord  Pro- 
tector of  England,  and  he  immediately  opened 
negotiations  for  peace,  which  was  concluded  in 
April,  1G54.  Thereupon  tbe  States  General  directed 
the  West  India  Company  to  present  to  the  British 
Government  their  pretentions,  reckoning  from  the 
beginning  of  1011  to  1650.  This  they  proceeded 
to  do  and  a  delegation  was  sent  to  England,  and 
they  wrote  back  to  Holland  that  they  themselves 
did  not  consider  the  claim  of  the  company  sub- 
stantiated by  the  evidence  adduced,  and  unless 
better  evidence  was  brought  forward,  they  could 
not  possibly  press  the  claim  on  the  English  Govern- 
ment (3  Asher,  35).  Lord  Thurloe,  Cromwell's 
minister,  asserted  the  justice  of  the  English  claim 
historically  and  legally  with  a  vigor  and  clearness 
that  must  have  convinced  even  the  Dutch  dele- 
gates. 

In  1050,  a  census  of  the  citizens  was  taken  and  its 
population  numbered  one  thousand,  a  large  pro- 
portion of  whom  were  negro  slaves,  who  were 
cheaper  than  cattle. 

In  1050,  Stuyvesant  sent  a  delegation  to  re- 
monstrate with  the  authorities  of  Maryland  upon 
their  alleged  encroachments  upon  New  Netherland, 
to  which  the  same  reply  was  made  as  theretofore, 
that  the  English  were  the  original  discoverers  and 
occupiers  of  fche  land  known  as  Virginia,  and  that 
they  claimed  under  the  patent  to  Ralegh  in  1584. 
For  the  first  time  the  Dutch  claimed  to  derive  their 
title  from  the  King  of  Spain  and  the  Popes  dona- 
tion, abandoning  apparently  the  foundation  upon 
which  they  had  theretofore  stood,  of  the  discovery 
of  Hudson. 

The  death  of  Cromwell,  the  downfall  of  his  son 
.Richard  and  the  restoration  of  Charles  II,  succeeded 
one  another  with  startling  rapidity  and  changed 
the  aspect  of  affairs.  A  revised  and  more  ob- 
noxious Navigation  Act  was  passed.    On  the  20th 


IS 


day  of  July,  1660,  Lord  Baltimore  demanded  that 
the.Dutch  should  surrender  the  lands  they  actually 
occupied  on  Delaware  Bay.  News  was  sent  to 
Holland  that  the  English  nation  was  seeking  to 
dispossess  the  West  India  Company  of  the  North 
Eiver  and  to  invade  its  shores. 

In  1663,  the  English  Royal  Council  for  Foreign 
Affairs,  alleging  that  the  Dutch  had  of  late  years 
unjustly  intruded  upon  and  possessed  themselves  of 
certain  places  on  the  main  land  of  New  England  and 
some  islands  adjacent,  as  in  particular  on  the  Man- 
hatoes  and  Long  Island,  ordered  a  commission  to 
draw  up  a  brief  narrative  of  the  Dutch  intrusion, 
and  the  means  to  make  them  acknowledge  and 
submit  to  his  majesty's  government,  or  by  force  to 
compel  submission  or  expulsion. 

In  the  early  part  of  1664,  King  Charles  sent 
certain  Royal  Commissioners  ostensibly  to  visit  the 
New  England  colonies,  with  secret  instructions 
regarding  the  Dutch.  As  a  part  of  the  same 
movement  Lord  Clarendon,  father-in  law  of  the 
Duke  of  York  and  Prime  Minister  of  Charles, 
negotiated  the  purchase  of  the  Sterling  grant,  and 
thereupon  on  the  29th  day  of  June,  1664,  he  ob- 
tained the  Royal  Charter  to  James,  Duke  of  York, 
of  all  the  territory  from  the  Connecticut  River  to 
Delaware  Bay.  Col.  NichoUs,  one  of  the  Royal 
Commissioners,  was  empowered  by  James  to  take 
possession. 

A  fleet  was  sent  secretly  to  America,  landing 
first  at  Boston,  and  sailing  thence  to  New  York, 
to  enforce  this  claim.  The  Dutch,  being  illy  pro- 
vided with  troops  or  ammunition  to  cope  with  the 
forces  sent  by  England,  surrendered  the  colon}^, 
and  gave  to  the  "  representatives  of  the  Duke  of 
York  peaceable  possession,  on  the  second  day  of 
September,  1664,  reserving  to  the  inhabitants  se- 
curity in  their  person,  property,  customs,  con- 
science and  religion. 

On  the  12th  day  of  January,  1665,  Gov.  Nicholls 
granted  to  the  City  of  New  York  its  first  English 


19 


charter,  which  has  ever  since  heen  know  as  the 
Nicholls  Charter. 

The  outcome  of  this  cowardly  and  unjustifiable 
seizure  was  what  might  reasonably  have  been  ex- 
pected; the  Dutch,  in  1664,  engaged  in  war  with 
England,  and,  under  Von  Tromp,  defeated  the  Eng- 
lish, so  that  the  Dutch  Admiral,  to  signify  the  com- 
pleteness of  his  victory,  fastened  a  new  broom  to 
his  mast-head,  to  indicate  that  he  had  made  a 
clean  sweep  of  the  ocean.  He  even  ascended  the 
Thames  and  threatened  to  put  London  under  con- 
tribution. 

The  next  year  brought  the  'English  to  terms. 
They  sued  for  peace,  and  the  King  was  compelled 
to  sacrifice  Clarendon. 

Subsequently  the  Treaty  of  Breda  was  made,  in 
1665,  between  England  and  Holland,  by  which 
New  York,  the  great  bone  of  contention  and  the 
cause  of  the  war,  was  surrendered  to  England  in 
exchange  for  Surinam  and  other  places  which  the 
English  then  held. 

This  transaction  caused  great  dissatisfaction  in 
England,  that  such  rich  provinces  in  the  East 
should  have  been  surrendered  by  the  Crown  for 
such  a  worthless  possession  as  New  York. 

This  peace  lasted  until  1673,  when  France  and 
England  combined  to  declare  war  against  the 
Dutch.  In  this  emergency  "William  of  Orange 
was  appointed  Statholder,  and  with  heroic  cour- 
age he  led  the  war  party  to  victory.  The  Dutch 
squadron  in  the  West  Indies,  composed  of 
twenty-seven  vessels  and  sixteen  hundred  men 
under  his  orders  attacked  the  English  on  the 
Chesapeake  Bay,  destroyed  the  tobacco  fleet  of 
Virginia,  and  on  the  28th  day  of  July,  1773,  sailed 
into  the  port  of  New  York  and  demanded  its  sur- 
render. The  English,  unable  to  cope  with 
this  formidable  array,  yielded  the  next  day.  On 
the  8th  of  August  the  Admirals  of  the  fleet 
placed  Sir  Anthony  Oolve  in  command  of  the 
Province,  and  the  Dutch  became,  by  conquest, 


20 


the  lawful  sovereigns  of  New  York.  Thenceforth 
neither  Cavalier  nor  Puritan,  Royalist  or  Colonist 
of  England  had  any  claim  to  political  authority 
over  the  territory,  but  private  rights  of  owner- 
ship under  the  law  of  nations  were  fully  recognized 
and  protected.  The  conquest,  however,  availed 
the  Ducth  very  little.  The  Prince  of  Orange,  with 
true  statesmanship,  concentrated  all  his  resources 
against  the  King  of  France,  and  therefore  deter- 
mined to  restore  New  Netherland  to  England. 
On  the  8th  of  February,  1681,  the  Treaty  of  West- 
minster transferred  the  title  to  the  King  of  Great 
Britain. 

An .  interesting  legal  question  arose,  which  was 
submitted  to  the  Crown  lawyers,  with  regard  to 
this  transaction,  and  that  was,  did  the  Patent 
to  the  Duke  of  York  revive  by  virtue  of  the 
English  acquisition  of  the  territory;  and  it  was 
unanimously  held  that  it  did  not;  that  the  grant 
had  been  extinguished  by  the  Dutch  conquest, 
and  that  the  re-possession  of  the  property  by  Eng- 
land did  not  revive  it.  Thereupon,  Charles,  on 
the  29th  of  June,  1674,  gave  a  new  grant  of  New 
York  to  his  brother  James,  without  reference  to 
the  former  grant,  in  its  identical  words. 

The  effect  of  these  grants  has  been  adjudicated 
by  the  Supreme  Court  of  the  United  States  in 
Martin  v.  Waddell,  16  Peters,  367,  and  it  was  held 
that  the  right  of  the  King  to  make  these  grants  was 
unquestioned;  that  they  were  made  to  enable  the 
Duke  of  York  to  establish  a  colony  to  be  governed 
according  to  the  laws  and  usages  of  England;  that 
it  was  a  Vice-Royalty;  and  that  the  people  were 
subjects  of  Great  Britain. 

And  it  may  be  here  added,  that  it  has  been  re- 
peatedly affirmed,  by  the  same  tribunal,  that  the 
making  of  these  grants,  from  the  beginning  to  the 
end,  was  the  continual  declaration  of  the  Crown 
of  its  sovereignty  over  the  lands  so  patented . 

Still  another  change  took  place  in  the  political 
title  of  New  York,  when  Charles  was  succeeded 


2j 


as  King  by  his  brother  James,  and  it  was  held, 
that  the  patent  which  James  held  as  the  Duke  of 
York,  went  to  the  Crown  when  James  became 
King.  Thus,  once  more,  the  political  title  reverted 
to  the  Crown. 

James'  representative  made  a  grant  of  all  the 
waste  and  unpatented  lands  to  the  City  of  New 
York.  The  only  reservation  made  in  either  of 
these  two  transfers  from  the  English  to  the 
Dutch,  and  from  the  Dutch  to  the  English  was 
that  the  Dutch  rights  of  private  ownership,  and 
all  successions  under  wills  should  be  respected. 

In  this  brief  summary  of  the  events  which  have 
taken  place,  it  will  be  seen  that  under  the  law,  as 
it  lias  always  been  declared  in  both  Europe  and 
America,  the  English  were  the  owners  by  right  of 
discovery  under  govermental  authority.  This 
gave  them  the  exclusive  ownership. 

The  Dutch  were  squatters.  They  had  no  title 
in  fee  to  the  land.  Their  only  right  was  that  of 
private  ownership,  recognized  by  treaty.  Their 
purchase  from  the  Indians  gave  them  no  title 
as  against  the  English;  and  it  has  been  always 
maintained  by  the  English  authorities  that  the 
Dutch  simply  were  squatters  here,  and  obtained  no 
title  to  the  soil.  Among  private  individuals  a 
squatter's  title  may  become  valid  by  lapse  of  time. 
It  is  not  so  with  nations,  as  the  Supreme  Court 
decided  in  relation  to  acts  by  the  Confederate 
Government,  when  the  usurping  authority  ends  it 
is  as  if  it  never  existed. 

Under  these  circumstances,  it  will  readily  appear 
to  the  Court  that  the  Dutch-Roman  law  as  to  high- 
ways never  could  prevail  in  this  colony.  It  has 
been  so  declared  by  Mr.  O'Connor,  in  points  which 
he  has  presented  to  the  Court  of  Appeals,  and  in  the 
decision  of  our  own  Courts,  and  in  the  Supreme 
Court  of  the  United  States.  The  rightful  title  of 
the  English  has  been  recognized  in  every  case  but 
one;  and  that  was  in  regard  to  a  highway  on  Long 


22 


Island,  which  decision  has  no  application  to  this 

case. 

In  the  diplomatic  correspondence  between  the 
Dutch  and  the  English  Government  respecting  the 
City  of  New  Amsterdam,  as  the  Dutch  called 
New  York,  their  first  claim  was  by  virtue  of  their 
purchase  from  the  Indians.  When  that  claim  was 
exploded  they  fell  back  upon  the  discovery  by 
Henry  Hudson;  but  as  we  have  shown,  Henry 
Hudson  individually  claimed  no  right  of  discovery, 
and  he  was  preceded  by  the  Portuguese,  the  Span- 
ish, the  French  and  the  English  in  the  Port  of  New 
York.  Upon  the  Dutch  map  annexed  to  the  petition 
of  the  shipowners  in  1G13,  which  gives  the  names 
of  the  Indian  tribes  adjacent  to  the  Hudson  Eiver 
as  far  north  as  Albany,  there  are  in  several  in- 
stances Spanish  names  ;  and  the  Pompey  Stone, 
which  is  now  supposed  to  record  the  death  of  a 
Spanish  captive  in  or  about  the  the  TWn  of  Pom- 
pey, also  proves  that  the  Spanish  had  made  their 
impress  upon  the  tribes  long  before  Hudson  ever 
came  to  America.  But  Hudson  took  no  possession 
of  the  property.  Finally,  the  Dutch  relied  for 
their  title  upon  the  Papal  Grant.  As  we  have 
seen,  this  was  given  to  Spain,  and  the  Dutch  claim 
under  the  grant  of  Spain.  That  claim  arose  in 
this  manner.  The  grandson  of  Ferdinand  and 
Isabella,  in  1514,  ascended  the  throne  of  Spain  as 
Charles  the  Second,  and  three  years  later,  of  Ger- 
many, as  Charles  the  Fifth,  Emperor  of  Germany. 
Through  his  maternal  grand-father  and  grand- 
mother he  obtained  the  title  to  the  Spanish 
crown.  Through  his  grand-father  on  his  father's 
side,  Maximilian,  he  became  Emperor  of  Ger- 
many. Through  his  paternal  grandmother  he 
became  the  Duke  of  Netherlands.  If  the  Dutch 
had  remained  a  part  of  the  Empire  of  Spain  it 
might  with  some  show  of  reason  be  claimed  that 
the  grant  made  to  Spain  in  the  preceding  century 
would  enure  to  their  benefit.  They  were  no  part 
of  the  Spanish  dominion  at  the  time  the  grant  was 


23 


made.  They  resisted  the  authority  of  Charles,  and 
under  him  and  his  successors  was  inaugurated  and 
conducted  the  famous  eighty  years'  war,  begun 
as  a  war  of  religion,  which  continued  until  Spain 
was  humbled  and  Holland  became  one  of  the 
richest,  freest,  most  flourishing  and  powerful 
countries  in  Europe.  They  could  not  deny  the  sov- 
ereignty of  Spain  and  claim  the  benefit  which  the 
Spanish  Crown  had  obtained  through  the  Papal 
grant.  They  never  were  incorporated  in  the  Span- 
ish dominion.  Charles  was  always  called  by  his 
different  titles,  King  of  Spain,  Emperor  of  Ger- 
many, and  Duke  of  Burgundy  and  the  Nether- 
lands ;  but  beyond  that,  Spain  herself  never 
claimed  that  the  Papal  grant  gave  her  any  title  to 
any  part  of  North  America  north  of  Florida,  and 
the  Dutch  could  obtain  no  larger  right  than  the 
Spanish  themselves  had  in  this  continent  under 
that  donation.  Besides  the  Protestant  countries  of 
Europe  never  recognized  the  Papal  grant  at  any 
time.  Elizabeth,  in  1584,  haughtily  answered  the 
Spanish  Ambassador,  "that  England  knew  nothing 
of  a  Papal  gift,  or  any  authority  in  the  Pope  to 
giant  any  land  in  the  world"  and  refused  to  recog- 
nize the  claim  which  the  Spanish  Ambassador  had 
made,  of  infringing  upon  Spanish  rights  under 
that  grant  ;  and  no  attempt  was  ever  made  to  en- 
force it.  The  great  writer  on  national  law,  Gro- 
tius,  himself  a  Hollander,  denied  that  the  Pope 
had  any  authority  to  grant  the  ocean  to  any  pow- 
er, because  in  the  nature  of  things  it  was  free  to 
all,  and  the  same  reasoning  would  apply  with 
equal  force  to  the  unoccupied  lands  of  the  then  un- 
discovered world;  so  that  in  no  point  of  view  can 
this  claim  of  the  Dutch  be  maintained. 

These  are  the  only  grounds  upon  whirl)  the 
Dutch  have  ever  claimed  the  right  to  the  owner- 
ship of  any  part  of  North  America,  and  the  more 
thoroughly  these  are  investigated  the  weaker  they 
appear.  The  claim  of  the  French  to  Norumbega, 
and  New  France,  antedates  and  is  superior  to  the 


24 


claim  of  the  Dutch,  and  this  included  New  York. 
But  the  highest  and  best  claim  of  all  is  that  of 
the  English. 

A  question  has  arisen  in  regard  to  the  nature  of 
those  conflicting  grants  which  England  gave. 
Later  in  the  century  she  limited  all  the  patents 
which  had  been  made  from  the  Atlantic  to  the 
Pacific  Ocean,  to  the  line  of  the  Mississippi  River. 
The  Supreme  Court  of  the  United  States  has 
authoritatively  determined  the  nature  and  effect  of 
these  different  grants,  and  they  have  been  held  to 
be  royal  grants  which  gave  political  rights  and 
*  privileges;  and  that  the  Crown  could,  so  far  as  the 
land  remained  in  the  possession  of  the  patentees 
themselves,  revoke  or  limit  such  grants,  but  the 
grantees  of  such  representatives  took  a  good  title, 
so  that  when  the  representatives  of  the  Duke  of 
York,  afterwards  James  the  Second,  King  of  Eng- 
land, by  their  charters  given  to  the  City  of  New 
York,  all  the  waste  and  unoccupied  lands,  they  con- 
veyed in  fee  the  property  which  had  theretofore 
been  undisposed  of,  but  that  only  gave  in  respect 
to  the  existing  highways  such  title  as  the  State 
then  had,  and  no  more,  and  throughout  the  length 
of  the  Bowery  that  title  was  simply  the  use  of  the 
property,  subject  to  the  right  in  fee  of  the  owner 
of  the  bed  of  the  highway.  . 

This  historical  summary,  therefore,  leads  to  the 
conclusion  that  the  Dutch-Roman  law  never  had 
any  application  to  the  Bowery  as  a  Dutch  highway; 
that  the  common  law  of  England  must  bo  held  to 
prevail,  and,  therefore,  that  the  judgment  that 
abutting  owners  upon  the  Bowery  had  no  right 
title  or  interest  in  or  to  the  said  highway  was 
erroneous. 

Wm.  H.  Arnoux, 

Of  Counsel. 


[N  9510] 


